1989 P Cr (PLP)

Ghulam Safdar for Petitioners. S.D. Qureshi for the State. Date of hearing: 31st October, 1988. The petitioner, Atta Muhammad and Dost Muhammad, who are real brothers, were tried by the learned Magistrate 1st Class, Mianwali, and were, by his judgment, dated 16‑2‑1976, convicted under section 304 read with section 34 of the P.P.C. and were sentenced to four years' R.I. and Rs.1,000 as a fine each. In default of payment of fine, they were directed to suffer R.I. for another period of six months each. Their appeal against their conviction and sentence was dismissed by the learned Additional Sessions Judge, Mianwali's judgment dated 26‑4‑1976. Hence this revision petition.

2. The prosecution case as deposed to at the trial by Ghulam Hussain, complainant, Muhammad Amir and Muhammad Yousaf P.Ws. was as follows. At Diggarwela on 28‑1‑1969, Ghulam Hussain and his deceased father Ghulam Isa found a cow damaging their crop. They proceeded with the cow to the cattle -pond. On the way Dost Muhammad, petitioner, met them and told them to release the cow. They refused to do so and continued proceeding towards the cattle‑pond. Shortly thereafter, the petitioners armed with Lathis again met them and insisted that they should release the cow. Dost Muhammad, petitioner, gave a Lathi blow on the back of his father; Atta Muhammad, petitioner, gave a Lathi blow on his head and he fell down. Dost Muhammad, petitioner, then gave a blow on the left flank of the deceased. Muhammad Amir and Muhammad Yousaf were attracted and rescued the deceased from the petitioners.

3. It appears that the injuries received by Ghulam Isa deceased were not taken seriously and the deceased was take to his house. He was medically examined on 29‑1‑1969 at 12‑30 p.m., and was found to have two injuries, a contused wound x 1/3 x scalp deep on the frontal parietal region of head and an abrasion " x 1" on the outer side of left hip. The incident had been reported to the police at 10‑00 or 11‑00 a.m. on 29‑1‑1969. Ghulam Isa died somewhere in the afternoon. The post‑mortem examination report also shows that the deceased had the abovementioned two injuries. While the injury on the outer side of the left hip was simple, the injury on the head was fatal; it had resulted in the rupture of intra cranial vessels and was sufficient in the ordinary course of nature to cause death. The prosecution case was fully supported at the trial by the testimony of Ghulam Hussain, Muhammad Amir and Muhammad Yousaf P.Ws. were wholly disinterested persons. Their testimony was believed by the learned Courts below and no reason is shown for holding that they had not seen the incident or that they had any reason to falsely implicate the petitioners. Learned counsel for the petitioners makes two points. The first is that the incident had occurred suddenly, the obvious purpose of the petitioner being to secure the release of their cow. According to the learned counsel, Atta Muhammad, petitioner, has already undergone his sentence; as regards Dost Muhammad, petitioner, he caused a simple injury ion the outer side of the left hip and that was a mere abrasion. The second point made by the learned counsel is that the doctor, who had examined Ghulam Isa deceased for his injuries and then performed the post‑mortem examination on his dead body, was not examined at the trial and no basis was laid for secondary evidence. As regards the first point, I agree that the circumstances tend to show that the primary object of the petitioners was to secure the release of their cow and not to kill the deceased and as the incident had occurred suddenly, each of the petitioners was responsible for the injuries caused by him. Dost Muhammad petitioner, caused an abrasion on a non‑vital part of the body and the offence committed by him, in my view, falls under section 323 of the P.P.C. As regards Atta Muhammad, petitioner, he caused a Lathi blow on the head of Ghulam Isa deceased, in his case, the maxim that a person is presumed to intend the consequences of his act applies. He was, therefore, rightly convicted under section 304 of the P.P.C. As stated above, he has already undergone his sentence. As regards the omission of the prosecution to examine the doctor, Muhammad Bashir Alam, Dispenser said that the doctor was `no longer here' and he was not cross‑examined.

4. Dost Muhammad, petitioner, had besides the period of detention in jail during the trial, remained in jail for about 8 months after the dismissal of his appeal by the Sessions Court. His conviction under section 304 of the P.P.C. is set aside; he is convicted under section 323 of the P.P.C. and his sentence is reduce to imprisonment already undergone. His sentence of fine is set aside. The revision petition is disposed of accordingly. SA./A‑524/L Sentence altered.